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September 18, 2020

VA Proposes Regulatory Modifications to Character of Discharge Determinations

The VA recently proposed amendments to 38 C.F.R. §3.12, which provides the criteria the VA uses for “Character of Discharge” determinations. The VA proposed to modify the regulatory framework for discharges considered “dishonorable” for VA benefit eligibility purposes. The VA also proposes to extend a “compelling circumstances” exception to certain regulatory bars to benefits, in an attempt to ensure fair Character of Discharge determinations. This rulemaking follows the 2016 Petition for Rulemaking, submitted by Swords to Plowshares (STP), a not-for-profit organization, along with Harvard Law School’s Veterans Clinic Director, Daniel Nagin. The petition argued that VA’s Character of Discharge determination process lacked consistency and that the regulatory bars concerning moral turpitude, willful and persistent misconduct, and aggravating homosexual acts were either outdated or vague. In response, the VA is proposing modifications. The comment period for the proposed changes ended on September 8.